Recueil des cours, Collected Courses, Tome 422


Watch the interview with Said Mahmoudi on Self-Defence and “Unwilling or Unable” States

The Private International Law of Class Actions: A Functional Approach, by Michael Karayanni.
A transnational class action raises fundamental questions in regards of the class action court’s jurisdiction over the defendant and the class members, on how to choose the applicable law, and ultimately on how to deal with the judgment if and when it comes up for enforcement or recognition before a foreign court. At times these questions and the complications they give rise to, become part and parcel of the class action court’s consideration whether to certify the class action as such. In these lectures, I will identify the major private international problems that are endemic to transnational class actions and how these were handled, principally by courts in the US, Canada and Israel. I will also offer an analytical legal framework that can better assist us in dealing with the private international law questions pertaining to transnational class action and that so by identifying three different categories of class actions, with each category demanding a separate and more surgical treatment.

Self-Defence and “Unwilling or Unable” States, by Said Mahmoudi.
A frequently debated question in international law after the terrorist attacks against the United States on 11 September 2001 has been whether the right to self-defence is available for a victim state when the non-state actor responsible for the attack is located in and operates from another state, which is unwilling or unable to forestall the attack. The ICJ has established that the right to self-defence enshrined in Article 51 of the UN Charter can be invoked against non-state actors' armed attacks provided the attacks are attributable to the state hosting such actors.
The purpose of the ‘unwilling or unable’ standard is to do away with the attribution requirement. It is thus claimed that the mere fact that an armed attack is carried out by a non-state actor active in the territory of another state should entitle the victim to use of force in self-defence against that actor within the territorial state.

The present text discusses whether state practice, the jurisprudence of the courts and the doctrine of international law in the past two decades indicate any change in the scope of the right to self-defence and its application against armed attacks by non-state actors. Its conclusion is that there has not yet been any change and the ‘unwilling or unable’ standard remains as controversial as when it gained currency in the aftermath of the 9/11 events.

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Michael Karayanni was born in Kafr-Yasif, a Palestinian village located in the Western Galilee in Israel. After obtaining his undergraduate law degree at Bar-Ilan University (LLB 1990) and being admitted to the Israeli bar, he went on to pursue graduate studies in law in the United States (George Washington University, LLM 1994, University of Pennsylvania, SJD 2003) and in Israel (Hebrew University of Jerusalem, LLD 2000). His academic base is at the Hebrew University of Jerusalem, where he is today the Bruce W. Wayne Professor of International Law. Throughout his career at Hebrew University he has held a number of administrative positions, among them Dean of the Faculty of Law, Academic Director of Minerva Center for Human Rights, Director of Sacher Institute for Legislative Research and Comparative Law and Founding Director of Center of the Study of Multiculturalism and Diversity. He has also held visiting positions at Wissenschaftskolleg zu Berlin, Georgetown Law Center, Melbourne Law School, Stanford Law School, Yale Law School and Institute for Advanced Study in Princeton. Recently he was elected to the Institut de Droit International. His work focuses on issues of private international law and interreligious law, civil procedure and multiculturalism.
Said Mahmoudi, born 6 January 1948 in Tehran, Iran.
Studied at University of Tehran, BA in political science and LLM, 1967-1973; Diploma in graduate legal studies, with distinction, Stockholm University, Sweden, September 1984; Juris Doctor (LLD), Stockholm University, October 1987; docent in international law, Stockholm University, September 1988.
Member of the Iranian Ministry for Foreign Affairs, May 1973-December 1981; Assistant Professor of International Law (January 1988-December 1989); Associate Professor of International Law (January 1990-June 1994); Acting Professor of International Law (July 1994-March 1999); Professor of International Law (since April 1999); Head of the Department of International Law (June 2005); Dean of the Faculty of Law (January 2009-December 2011), all at Stockholm University.
Member of the Conseil Européen du Droit de l’Environnement (CEDE) (1995- 2010); Member of International Council of Environmental Law since 1998; Member of the Swedish Ministry for Foreign Affairs Advisory Group for Public International Law Issues (1995-2002); Member of the International Law Association since 1990 (Committee on Coastal State Jurisdiction Relating to Marine Pollution (1991-2000) & Committee on Legal Issues of Outer Continental Shelf (2000-2010) ); Member of the American Society of International Law since 1993; Member of the European Society of International Law since 2015; Member of the Board of Law of the Sea Global Institute, University of California, Berkeley, since 2002; Member of the Board of the Swedish Branch of the International Law Association since 1998; Member of the International Jury for the Elisabeth Haub Prize in Environmental Law (2002-2016); Chairman of the International Jury for the Elisabeth Haub Prize in Environmental Law (2015-2016); listed as the Swedish representative on the Panel of Arbitrators according to Article 2 of Annex VII to the 1982 UN Convention on the Law of the Sea since 2006; Member of UNODC International Legal Expert Group on Transnational Organized Crimes, Bangkok and Beijing, 2000-2002; Member of EU Senior Advisory Group on Legal Reforms, Hanoi & Addis Ababa, 2007-2012; Member of the Editorial Boards of Scandinavian Studies in Law, Yearbook of International Environmental Law, Environmental Policy and Law, Atoms for Peace: An International Journal and Aegean Review of the Law of the Sea and Maritime Law.
Recipient of the Swedish Royal Order of the Polar Star for meritorious services in Sweden, December 1979; Recipient of the Swedish Royal Order of Seraphim for valuable research efforts in law of the sea, international environmental law, and general international law, June 2020.
The Private International Law of Class Actions: A Functional Approach, by Michael Karayanni:
Introduction 17
Chapter I. What is a class action? 21
A. The breadth and width of group litigation mechanisms 27
1. The English representative action 28
2. The US class action 30
3. Class action and aggregate litigation around the globe 34
(a) The English Group Litigation Order 36
(b) The German test case 36
(c) The Dutch settlement 37
(d) The defendant class action 37
B. The logic of class action 38
C. Three categories of class actions 43
1. Category I: Insubstantial individual claims and negative incentive for individual litigation 45
2. Category II: Significant individual claims and positive incentive for individual litigation 49
3. Category III: Significant individual claims and negative incentive for individual litigation – the class action of the disempowered 56
4. Class action categories and their implications 60
D. Private international law questions in class actions: A prelude 64
Chapter II. Adjudicatory jurisdiction over class action 70
A. General principles of in personam jurisdiction in common law . . . 70
B. In personam jurisdiction in class actions: Traditional rules in action. 75
1. Jurisdiction over the class members 77
(a) The US approach: Phillips Petroleum Co. v. Shutts 78
(b) The Canadian approach: Airia Brands Inc. v. Air Canada . . 86
(c) Jurisdiction over resident class members 87
2. Jurisdiction over the class action defendant 88
3. Jurisdictional functionalism 95
(a) Jurisdiction over a Category I class action 95
(b) Jurisdiction over a Category II class action 100
C. Forum non conveniens 102
D. Forum selection clauses 110
E. Parallel proceedings 120
Chapter III. Choice of law in class actions 124
A. Choice of law and the conundrum of certification 126
B. Managing choice of law in class actions despite its potential comple- xities 134
1. Procedural mechanisms facilitating manageability 135
2. The settlement class action 135
3. The baseless class action 140
4. The “one class, one law” constellation 143
(a) “One class, one law” as dictated by a choice-of-law clause . 144
(b) “One class, one law” as dictated by the regular choice-of-law rule 145
(c) “One class, one law” as dictated by a special choice-of-law rule 151
(d) Opposition to the “one class, one law” approach 158
C. The functional approach to choice of law in class action 164
1. Choice of law in a Category I class action 165
2. Choice of law in a Category II class action 171
Chapter IV. Recognition and enforcement 179
A. Setting the parameters 179
B. Looking ahead: Certification and preclusion 183
C. Certification and preclusion: Second thoughts 188
D. Looking back: Admission and preclusion 197
1. The jurisdictional prong 198
(a) The restrictive approach 198
(b) The mirror approach 204
2. Public policy and procedural justice 211
(a) Wholesale justice and public policy 212
(b) Procedural justice and notice 215
(c) Adequate representation 218
E. Class action categories and the preclusive effect of judgments . . . . 222
F. Preclusion and global class actions: The challenges ahead . . . . . . 227
Observation I: Class actions and the transfer of wealth . . . . . . 227
Observation II: Forum shopping and under (over) inclusiveness of the class . . . . . .228
Observation III: On the relative sanctity of class action preclusion . 231
Concluding remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Bibliography. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234

Self-Defence and “Unwilling or Unable” States, by Said Mahmoudi:
Introduction 265
Chapter I. The use of force: General legal framework 268
A. Use of force and its prohibition 268
1. Definition of force 271
2. Prohibition ratione personae 272
3. Territorial integrity and political independence 272
4. International relations 274
B. More on the scope of the prohibition 275
1. The United Nations General Assembly 275
2. The International Court of Justice (ICJ) 275
3. Prohibition of the use of force as jus cogens 278
C. Self-defence 280
1. Self-defence as an inherent right 281
2. Definition of “armed attack” 284
3. Attacks by non-state actors 286
4. Necessity and proportionality 288
Chapter II. Self-defence and non-state actors 291
A. Definition of aggression 292
B. The Nicaragua case 296
1. Nicaragua’s activities in its neighbouring countries 296
2. USA’s activities in and against Nicaragua 298
C. State practice prior to the 9/11 events 304
Chapter III. Development of the “unwilling or unable” standard since 11 September 2001 313
A. Reactions to the 9/11 terrorist attacks 313
B. Practice of the ICJ after the 9/11 events 320
1. The Oil Platforms case 320
2. The Wall advisory opinion 322
3. The Armed Activities case 324
C. Legal and policy-oriented inputs 327
1. The African Union Pact 327
2. The Chatham House Principles 328
3. The Resolution of the Institut de droit international 329
4. The Leiden Policy Recommendations 330
5. The Bethlehem Principles 331
6. International lawyers’ plea 333
D. Some post-9/11 cases of the use of force against non-state actors . . 334
1. Russia-Chechen rebels (Georgia) 2002 335
2. Israel-Islamic Jihad (Syria) 2003 336
3. Israel-Hezbollah (Lebanon) 2006 337
4. Turkey-PKK (Iraq) 2006-2019 338
5. Colombia-FARC (Ecuador) 2008 340
6. Use of force against ISIS (Iraq and Syria) 2014-2019 340
E. Appraisal 351
Chapter IV. The “unwilling or unable” standard and its justifications . . . 352
A. General observations 352
B. Attribution according to the ILC Draft Articles 353
C. Attribution beyond the ILC Draft Articles 355
1. Substantial involvement 355
2. State complicity 357
3. Violation of due diligence obligation 358
4. The necessity argument 360
5. Accumulation of events 362
6. Consent and its presumption 364
7. Curtailment or denial of sovereignty 369
8. Extraterritorial law enforcement 370
D. Appraisal 371
Chapter V. The “unwilling or unable” standard: quo vadis? 373
A. Overview 373
B. Violation of the host state’s territory and circumstances precluding wrongfulness 377
C. What options for the victim state? 380
Conclusions 386
Bibliography 393
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